Free Declaration - District Court of Arizona - Arizona

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THE LAW OFFICES OF ROBERT M. COOK

Robert M. Cook (SBN 002628) THE LAW OFFICES OF ROBERT M. COOK 1430 East Missouri, Suite 150 Phoenix, Arizona 85014 Telephone: (602) 285-0288 Facsimile: (602) 285-0388 E-mail: [email protected] Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA THOMAS J. LARIOS Plaintiff, v. RALPH E. OGDEN; YUMA COUNTY SHERIFF'S OFFICE; AND YUMA COUNTY Defendants. State of Arizona County of Yuma ) ) ss. ) AFFIDAVIT OF PLAINTIFF IN SUPPORT OF PLAINTIFF'S REPLY TO DEFENDANTS' MOTION FOR RECONSIDERATION OF ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT Case No: CV-03-2285-PHX-SRB

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I, Thomas J. Larios, hereby declare, swear, and avow as follows: I make this affidavit in response to the allegations contained in the Motion for Reconsideration filed on behalf of Defendants by Joseph Lambert, Esq. 1. 2. I am 70 years of age. I served as a Master Control Officer for the Yuma County Sheriff's Department from

April 8, 1995 to September 1, 1995, and a Warrants Officer for the Yuma County Sheriff's Department from August 1,1995 through May 1, 2002. 3. I suffered a heart attack on November 28, 2001 while working for the Yuma County

Sheriff's office and returned to work in mid-January, 2002. 4. of my disability. On May 1, 2002, I was removed from my position as Warrants Officer, solely because

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5.

On July 8, 2002, Defendant Ogden notified me that I had been demoted from my position

as Warrants Officer to the position of Security Control Officer. 6. This demotion was coincidentally just prior to my approved merit increase which was

effective September 1, 2002. 7. I wrote Sheriff Ogden a letter on October 16, 2002 (Schedule 1) asking for an

appointment to discuss reinstatement of my job as Warrants Officer or any position with the department.

8. Sheriff's Office. 9.

On November 29, 2002, I was discharged from my employment with the Yuma County

On December 18, 2003, I received a Dismissal of Charge and Notice of Suit Rights from

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MISSOURI COMMONS - SUITE 150 1430 EAST MISSOURI PHOENIX, ARIZONA 85014

the U.S. Equal Employment Opportunity Commission essentially stating that the basis for my demotion was because I could not physically perform duties as a Detention Officer due to my physical condition of muscle weakness and possible nerve damage. 10. I was replaced by a younger, inexperienced person taking over my position as Warrants 1 1 .

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Officer, and the Sheriff's Department was not accommodating to my physical condition.

Mr. Lambert in his Motion alleges that I, not Defendants, "undermined the effectiveness of the process by single-mindedly pressing for one accommodation only: reinstatement to the Warrants Officer position." I attach for your easy reference a letter I wrote to Sheriff Ogden dated October 16, 2002 (Schedule 1), a Memo to Captain Robert Mitchell from Sheriff Ogden dated October 16, 2002 (Schedule 2), a copy of Sheriff Ogden's letter to me dated October 21, 2002 (Schedule 3) and portions of a Declaration of Sheriff Ralph E. Ogden (Schedule 4), previously filed in this matter. These documents are self-explanatory but simply put, rebut Defendants' allegations that I was unwilling, or did not request, other positions within the Department. The Sheriff himself acknowledged my desire to return to the Department at "any position". 12. In November, 2002, I met with Nora Mejia-Rico from Human Resources who advised

me that I had two options: quit or be fired. She said "that there were no other positions available to me." The Sheriff's Declaration further confirms Nora Mejia-Rico's comment. The Defendants are well aware that I pursued every possible position. In fact, during the EEOC meeting the Judge requested Sheriff

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Ogden and myself go try to work out our problems. Sheriff Ogden and I did sit down together and the first thing Sheriff Ogden said to me was "you can't have your warrant job back." I inquired of Sheriff Ogden about the fugitives/extradition position and explained the fact that I started the shuttle system and saved the County $40,000 or more through my research. Sheriff Ogden stated he would not bifurcate the warrant department. 13. I then asked if I could assist the person who goes for supplies on a daily basis. He simply

stated "No". Defendants' suggestion that I did not show any interest in a dispatcher position offered in Sheriff Ogden's April 25, 2003 (Schedule 5) is misleading at best. I had no use of my little fingers on either hand. I would not be able to pass the typing test required to hold this position. Sheriff Ogden and the department was aware of this and did not offer to by-pass that test. Simply because of the test, I would have been turned down for that dispatcher job. The other job identified in that letter had no available positions to which to apply. Regardless, these same jobs are advertised every week in the Daily Sun, whether a position is available or not. 14. The truth of the matter is that after my heart by-pass surgery, I used the ground floor exit

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and not the stairs. Once in a long while I would exercise by very slow climbs on the stairs. However, that lasted a very short time as it was very difficult. 15. Regardless of my known disability, my desk was relocated from the lower level to the

higher level, as `they' put it, they had outgrown the space. Yet all of the warrants, materials and files remained downstairs. Every time I needed to do my job I had to walk down and back up the stairs. I requested the assistance of another clerk and more room to work. Captain Mitchell advised me simply with "No". Immediately after my dismissal the department hired that additional clerk and I believe expanded my former office space. 16. On September 4, 2003 my attorney wrote a letter to counsel for the Yuma County

Sheriff's Department (Schedule 6). He reiterated my desires to continue employment and advised opposing counsel that I had in fact applied for numerous positions. My attorney attempted to move towards resolving this matter by simply getting me a job. 17. On September 16, 2003, Mr. Lambert responded in writing. He indicated that I had

would continue to be considered for County jobs and those jobs were "State jobs". (Schedule 7)

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18. 19.

I am finally re-employed. I have been working as a gaming inspector for almost a year. I have read the foregoing Affidavit and swear that the information contained herein is true

and accurate to the best of my knowledge, information and/or belief. Dated this 19th day of August, 2005. /s/ Thomas J. Larios Thomas J. Larios SUBSCRIBED AND SWORN TO before me this 19th day of August, 2005, by Thomas J. Larios. /s/ Linda J. Weatherwax Notary Public My Commission Expires: 2/12/07 ___________________

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